TO RECOMMEND OR NOT TO RECOMMEND: THAT IS NOT THE QUESTION

Tippins and Wittmann provide a cogent argument for custody evaluators not to make recommendations to the court. From their forensic and scientific perspectives, they have identified some important issues, which will certainly stimulate interesting discussion among custody evaluators. In response to their article, it is my view that public sector custody evaluations offer a philosophical and procedural alternative to forensic evaluations. This article proposes that recommendations should be viewed as part of the process of evaluations rather than the outcome. Based on a qualitative and interpretive model, recommendations are judged based on their applicability, transferability, and transparency. Recommendations viewed in qualitative terms provide parents with opportunities to step out of litigation and provide guidance for parents' ongoing roles postseparation.     

COMMENTARY ON TIPPINS AND WITTMANN'S "EMPIRICAL AND ETHICAL PROBLEMS WITH CUSTODY RECOMMENDATIONS:

Although in substantial agreement with Tippins and Wittmann's analysis, their call for a moratorium on the practice of custody evaluators making recommendations to the court does not solve the many problems that they have raised, and may have unintended consequences which place families at even greater risk. This commentary reflects our agreement with some of the authors' major points of contention, focuses on several points of disagreement, and suggests alternative remedies for the shortcomings and ethical problems described in child custody evaluations.     

NEVER PAINT BY THE NUMBERS

As the debate continues on ways of thinking about access between separated and never-married parents and their very young children, the authors suggest a way that child custody evaluators can integrate this discussion into their evaluations. They conclude that evaluators must pay attention to family dynamics and all of the research when making specific recommendations to parents and the courts regarding the access and residential arrangements of very young children.     

TIPPINS AND WITTMANN ASKED THE WRONG QUESTION:

Tippins and Wittmann (2005) provide an important analysis of the limitations of child custody evaluations, but they are wrong to propose that court-appointed evaluators should be precluded from making recommendations about best interests decisions. While some of the evidence of evaluators may fail to meet the high standard of reliability expected for "expert evidence," the role of court-appointed evaluators in child-related cases is not the same as the role of party-retained experts in other types of litigation, and the legal basis for their involvement in the family law dispute resolution process is very different. The family courts should not apply the "expert evidence" standard when deciding how to use the evidence of a court-appointed evaluator, but rather should use a more flexible standard that takes account of the family law context. If the Tippins and Wittmann proposal is adopted, it will have negative implications for the resolution of family law cases, including making settlements less common, thereby deleteriously affecting children.     

ATTORNEYS' BELIEFS AND OPINIONS ABOUT CHILD CUSTODY EVALUATIONS

We surveyed a national sample of family law attorneys (N = 192) regarding their beliefs and opinions about child custody evaluations, particularly those performed by independent/private practitioners. Findings revealed participants' strongly preferred court‐ordered evaluations performed by doctoral‐level psychologists who assumed a neutral position. The participants expressed concern regarding procedures used by evaluators, the application of evaluation data to the Best Interests of the Child Standard, and certain report components. A clear majority supported evaluators making recommendations about custody and parenting time, but their satisfaction with these evaluations varied widely. Specific concerns and suggestions noted by the participants are highlighted; we conclude with recommendations.     

CRITIQUE OF CHILD CUSTODY EVALUATIONS BY THE LEGAL PROFESSION

This study explored the congruency between child custody evaluations and the needs of the legal profession. One hundred twenty-one judges and attorneys were surveyed. In general, both groups expressed similar attitudes and beliefs. Findings indicated that court-ordered evaluations were most useful, and objectivity was paramount. Judges and attorneys also expressed a need for improvements in child custody reports, particularly greater child focus, provision of custody and visitation recommendations, discussion of legal criteria, and timely completion of evaluations. It is hoped that the findings will inform professional practice and help evaluators better serve the needs of the family court.     

MAKING A PLACE AT THE TABLE:

This response to Timothy Tippins and Jeffrey Wittmann's article "Empirical and Ethical Problems with Custody Recommendations: A Call for Clinical Humility and Judicial Vigilance" builds upon the authors' conclusions that custody evaluations cannot and should not be a substitute for the socio-legal judgment of the best interests of the child. Recognizing that clinical humility and judicial vigilance may not be sufficient to restrain the misuse of psychological evaluation, we offer for consideration three structural changes that would provide for a more appropriate use of the skills and talents custody evaluators bring to legal decisions. We suggest using custody evaluators in the less adversarial setting of preparing parenting plans, revising the procedures by which custody evaluations are elicited in litigation, and adopting the approximation standard for child custody determinations.     

THE USE OF PSYCHOLOGICAL TESTING IN CHILD CUSTODY EVALUATIONS

Evaluation of families for purposes of assisting the court in making decisions about custody is perhaps the most complicated forensic evaluation. Mental health professionals conducting such evaluations must ensure that their evaluations validly assess areas of concern deemed relevant by the judiciary and legislature. Evaluators sometimes use psychological measures in the evaluation process, and in recent years, a number of tests designed specifically for use in child custody evaluation contexts have been developed. Because some published tests do not meet basic professional standards, child custody evaluators should carefully review any test and its supporting documentation before including it in their examination procedures. In this article, the authors discuss the rationale for using psychological tests in child custody evaluations, describe current testing practices, review and critique contemporary custody evaluation instruments, and offer a template for mental health professionals to use when considering use of a particular test.     

MEDIATIVE EVALUATIONS: THE PROS AND PERILS OF BLENDING ROLES

Child custody evaluators with experience in mediation may be tempted to use mediation skills and strategies in their evaluation processes. This article explores the benefits and risks of blending mediation with evaluation, comparing the perspectives of professionals and clients.     

Assessing allegations of domestic violence in child custody evaluations

There has been an increased focus on child custody evaluations involving domestic violence allegations with much criticism of evaluators' training, practices, and procedures. A national survey of 115 child custody evaluators (doctoral and master's level) was conducted to explore these criticisms. Findings revealed adequate training, multiple sources of data collection, and practices/procedures that closely adhere to child custody guidelines. However, robust, specialized domestic violence instruments, tests, and questionnaires were underutilized. Respondents indicated that findings supporting domestic violence allegations had a substantial impact on their subsequent recommendations. Results are discussed in terms of the importance of assessing domestic violence when conducting custody evaluations and the need for developing practice standards in this domain. Generally, results did not support common criticisms of custody evaluation practice.     

COMMENTARY ON "EMPIRICAL AND ETHICAL PROBLEMS WITH CUSTODY RECOMMENDATIONS:"

Whether or not custody evaluators, testifying as expert witnesses, continue to make specific custody recommendations, custody decision making will continue to be based upon inadequate and untested evidence unless and until we reform the family court system in American courtrooms. Judges and lawyers must have specialized knowledge and training about such things as the developmental needs of children, the effects of divorce on children, domestic violence, and child safety issues; lawyers must develop litigation as well as mediation and negotiation skills; specialized family courts utilizing individual calendars and case management techniques must be established; and the complexities and intellectual challenges of family law cases needs to be recognized.     

PARTNERS IN THE PROCESS: HOW ATTORNEYS PREPARE THEIR CLIENTS FOR CUSTODY EVALUATIONS AND LITIGATION

We surveyed 113 family attorneys regarding what they did to prepare their clients for child custody evaluations and litigation. Findings revealed that participants saw child custody evaluations as useful on a variety of levels and effective in settling cases. In general, participants reported using professionally acceptable procedures, appropriately advocated for their clients, and dealt with complaints in a reasonable fashion. Referrals to mental health professionals in advance of a child custody evaluation were generally made to provide support rather than for evaluation or test preparation. Work product reviews by mental health consultants were infrequent, although such reviews were seen as highly useful by those who used them. Lastly, participants reported that allegations of parental alienation and domestic violence were often used to gain leverage in custody cases. Implications for practice are discussed for both attorneys and evaluators.     

CHILD CUSTODY EVALUATION PRACTICES: A 20‐YEAR FOLLOW‐UP

This study surveyed 213 experienced child custody evaluators utilizing the same questionnaire in the Ackerman & Ackerman 1997 and Keilin & Bloom 1986 studies. Demographic information, evaluation practices, custody decision‐making, and recommendations were surveyed. Comparisons were made across all three studies to identify the similarities and differences in child custody evaluation practices over the past 20 years. This study added questions about risk management and ethical issues, and current practices in placement/access schedules. The reader is advised that not engaging in the practices performed by a majority of psychologists could result in a difficult testimony experience.     

RELYING ON THE UNRELIABLE: HOW A COURT RULE COULD ALLEVIATE THE PROBLEMS INHERENT IN THE NEUTRAL MENTAL HEALTH EVALUATION PROCESS IN CHILD CUSTODY CASES

Many states lack standards as to who should be conducting neutral mental health evaluations in child custody proceedings and what these evaluations should be comprised of. This will occasionally result in an unqualified evaluator giving a recommendation to the court as to which parent should receive custody of their child[ren]. This Note advocates for courts to adopt a court rule which specifically enumerates the qualifications of neutral mental health evaluators in the hopes of regularizing the evaluation process. The first part of the proposal addresses who should conduct evaluations by establishing the required credentials of the evaluator and minimizing the amount of evaluator bias by screening the process. The second part of the proposal focuses on the training needed before an evaluator may conduct an examination, as well as the amount of experience required.     

THE EMERGING FORENSIC ROLE FOR WORK PRODUCT REVIEW AND CASE ANALYSIS IN CHILD ACCESS AND PARENTING PLAN DISPUTES

An emerging forensic service is that of conducting a work product review of a court‐appointed child custody evaluator's evaluation and report. If the reviewer determines there are serious deficiencies in the work product, then the reviewer will provide consultation to the retaining attorney and expert testimony. The reviewer usually is in a hybrid role of consulting/advising the retaining attorney, testifying, and educating the court. Ethical issues in providing forensic services and rebuttal testimony as a reviewer are discussed. Both reviewers and evaluators have a duty to be objective and balanced in their analyses of data and issues. Both types of experts should strive to be helpful to the court and try to serve the best interests of children. Ethical nuances involving review work are discussed. Evaluator and reviewer share the same dataset. Evaluators need to take care to keep a high quality case record with legible interview notes. Reviewers provide a monitoring function for the court or a function of forensic quality control so the court will not be misled by expert testimony of evaluators that is based on flawed data collection and/or analysis. A list of questions is presented for reviewers to use in scrutinizing the quality of the custody evaluation. A list of questions is presented for examining the quality of the reviewer's own work product. The importance of a case analysis and use of conceptual frameworks by evaluators and reviewers is discussed.     

PARENT-CHILD OBSERVATIONS IN CUSTODY EVALUATIONS

Child custody evalutors need to increase the scientific foundations of their work, both for the benefit of clients and to address criticisms of the field. Observations of parents with children potentially yield huge amounts of data, and it is important for evaluators to consistently apply scientific and professional principles to make sense of all that information. Recommendations for observation sessions are made that integrate theory, research, and practice. These recommendations include the most important interactional dimensions to focus on, which family members to have present, the optimal level of stress, the number of sessions needed, and considerations about home visits.     

Tippins and Wittman Revisited: Law,Social Science,and the Role of the Child Custody Expert 14 Years Later

It has been 14 years since Tippins and Wittmann ( 2005 ) voiced concern for the overreaching role the expert may play in matters of family law. This article sets their levels of inference within the context of the culture of both law and social science. We examine how inferences are impacted by the relative emphasis child custody experts give to the five stakeholders involved in child custody evaluations (CCEs): courts, lawyers, parents, children, and professional governing bodies. Acculturation of the assessor to law contributes to more egregious inferences, versus the more modest ones Tippins and Wittmann advocated. How evaluators prioritize stakeholders shapes their opinion and methodology. We offer an expanded perspective that views how their levels of inference are manifest in reports, methodology, and recommendations and the influence of the culture of law and the mindset of the clinician. We hope to encourage clinicians to find ways to operationalize clinical humility, assume their proper role, and remain true to their master identity as licensed mental health professionals and their proper sphere of authority.     

Forensic Methods and Procedures Applied to Child Custody Evaluations: What Judges Need to Know in Determining a Competent Forensic Work Product

Judges are seeing an increase in the number of forensic reports in the area of child custody. This increase in forensic mental health involvement suggests that judges need to better understand the application of current forensic mental health methodology to assist them in determining a competent forensic work product. Recent literature has argued that child custody evaluators need to craft their reports consistent with scientific methods and procedures as well as legal standards governing admissibility of scientific evidence. This paper provides a framework for judges to assist in determining whether a child custody evaluation has been crafted consistent with current behavioral science literature pertaining to use of forensic mental health methods and procedures.     

Relocation Issues in Child Custody Evaluations: A Survey of Professionals

We report on a sample of 90 child custody evaluators in the United States, who completed an online questionnaire on their attitudes and beliefs in child custody relocation cases. Findings indicated that the vast majority of participants relied on relevant professional literature and utilized a relocation risk assessment forensic model. Participants found many risk, protective, and specific relocation factors important, but the triad of past parental involvement, support for the other parent, and child's age were afforded the most importance. Participants also reported that the moving parents sought relocation for educational/vocational reasons, to receive support of their extended family, or to remarry, while the nonmoving party most commonly opposed relocation due to fears of interference/damage to the nonmoving parent–child relationship, restrictive gatekeeping, and alienation. A common trend among participants was concerns over the possible detrimental impact of any relocation on the nonmoving parent–child relationship and quality of co‐parenting. The vast majority of participants reported that they made specific recommendations to the court about relocation, and the court agreed with their recommendation the overwhelming majority of the time. We discuss Implications of the findings as well as areas needing further research.     

THE “WINNER-LOSER SYNDROME’

The purpose of this paper is to outline some of the historical antecedents—in psychotherapy and family law—to the present state of child custody determination. Certain problems with the current approach to custody disputes, which some have called the “winner-loser syndrome,” are identified; and a newer approach, referred to as the “parenting plan” model, is discussed.